Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 2, Cited by 0]

Jharkhand High Court

Pradip Kumar Khatuwala vs Nagar Parishad on 14 January, 2021

Author: Rajesh Shankar

Bench: Rajesh Shankar

                                  1

        IN THE HIGH COURT OF JHARKHAND AT RANCHI

                     W.P.(C) No. 69 of 2021
Pradip Kumar Khatuwala                           ...    ...    Petitioner
                                Versus
1. Nagar Parishad, Jhumri Telaiya through the Administrator, District-
   Koderma
2. Administrator, Nagar Parishad, Jhumri Telaiya, District- Koderma
                                          ...      ...Respondents

CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner :- Mr. Indrajit Sinha, Advocate For the Respondents :-

Order No. 02 Dated: 14.01.2021 The present case is taken up through video conferencing.

2. At the request of the learned counsel for the petitioner, the defects, as pointed out by the office, are ignored.

3. The present writ petition has been preferred for quashing and setting aside letter no.1750 dated 05.12.2020 (Annexure-7 to the writ petition) issued by the Administrator, Nagar Parishad Jhumri Telaiya(respondent no.2) whereby the petitioner has been directed to remove the illegal construction of third and fourth floors of the building known as Devshree Complex, Ward No. 15, Station Road, Jhumri Telaiya (hereinafter referred as "the said Building") within seven days on his own in purported compliance of the order dated 04.12.2020 passed by the learned Lokayukta failing which the same would be demolished at his cost. Further prayer has been made for quashing letter no.30 dated 05.01.2021 (Annexure-10 to the writ petition) issued by the respondent no. 2 whereby last opportunity has been granted to the petitioner to remove the alleged illegal construction within one week from the date of issuance of the said letter. The petitioner has further prayed for issuance of direction upon the respondent nos. 1 and 2 to keep the letter no. 1750 dated 05.12.2020 and letter no. 30 dated 05.01.2021 issued by the respondent no. 2 in abeyance till the respondents assess the deviation from the sanctioned building plan and consequently condone the deviation in accordance with law by imposing appropriate fine and thereafter regularize 3rd floor of the said building.

2

4. The factual background of the case as stated in the writ petition is that the petitioner is the owner of the land situated over R.S Plot No. 7532, Ward No. 15, Station Road, Jhumri Telaiya measuring an area of about 0.08 ½ acre. The petitioner intended to construct a commercial complex in the name of 'Devshree Complex' over the said land by demolishing the existing residential house. The respondent no. 2 vide order dated 02.03.2015, sanctioned the said demolition directing the petitioner to apply and obtain a sanctioned building plan by the Nagar Parishad, Jhumri Telaiya before commencing any new construction. Thereafter, the old structure was demolished. The petitioner applied for sanction of plan of the said building on 12.09.2015 and paid fee as assessed by the Executive Officer of Nagar Parishad, Jhumri Telaiya. The petitioner was granted license for erection of the said building by the Executive Officer, Nagar Parishad, Jhumri Telaiya, vide letter no. 3177 dated 29.09.2015. Thereafter, the petitioner commenced the construction work of the said building and completed it in April 2018. While the construction was underway, the Executive Officer, Nagar Parishad, Jhumri Telaiya, vide letter no. 825 dated 24.03.2017, informed the petitioner that the construction was being carried out in contravention of the sanctioned plan and hence he was directed to adhere to the sanctioned plan and inform the same to the office of the respondents within seven days failing which further steps would be taken in accordance with law. After receipt of the said notice, the petitioner visited the office of the respondent no.1 and 2 and apprised them that since the width of the road was 30 feet, he could construct a higher and bigger building in terms with the existing bye laws and regulations. Thereafter, no step was taken by the respondent no.1 and 2 and hence the petitioner continued with his construction up to third floor. After completion of the said building, the petitioner sold/rented/leased out shops to different persons. The petitioner repeatedly approached the respondent nos. 1 and 2 to undertake the formalities for regularization of the said deviation and they verbally assured him that steps in accordance with law would be taken. In the meantime, the entire building was assessed for the purpose of levy of property tax which the petitioner regularly paid.

3

Thereafter, the Executive Officer, Nagar Parishad, Jhumri Telaiya, vide letter no. 3707 dated 20.12.2018, letter no.1101 dated 24.04.2019 and letter no. 1269 dated 16.05.2019 directed the petitioner to remove the structure constructed beyond the sanctioned plan. The petitioner approached the respondent nos. 1 and 2 requesting inter alia to keep the notices in abeyance and to consider his case for regularization of the deviation whereupon they assured that he would be informed about the future steps to be taken in this regard. However surprisingly, the petitioner was served with a notice as contained in letter no. 1750 dated 05.12.2020 issued by the respondent no.2 in purported compliance of the order dated 04.12.2020 passed by the Lokayukta and he was directed to remove the illegal construction of the third and fourth floor of the said building. The petitioner replied the said letter on 21.12.2020 requesting the respondent no.2 to provide a copy of the order of Lokayukta showing his willingness to pay penalty as may be imposed for regularization of the said part of construction. The petitioner further stated in his reply that he had not made any permanent construction on the fourth floor, rather only temporary shed had been constructed, however the respondent no.2 did not respond to the petitioner's letter dated 21.12.2020 and vide letter no. 30 dated 05.01.2021 again directed the petitioner by way of last opportunity to remove the alleged illegal construction within a period of one week from the date of issuance of the letter. He was also supplied a copy of order dated 04.12.2020 passed by the learned Lokayukta. Hence, the present writ petition.

5. Learned counsel for the petitioner submits that the petitioner was neither served with a notice in connection with any proceeding before the learned Lokayukta nor he was granted any opportunity of hearing by the Learned Lokayukta before passing the order dated 04.12.2020. Moreover, the learned Lokayukta had only directed the respondent no. 2 to inform regarding the action taken with respect to the alleged illegal construction. It is further submitted that the order dated 04.12.2020 passed by the learned Lokayukta is not binding upon the petitioner since the same has been passed in his absentia. There are many old and new buildings in Jhumri Telaiya town having similar 4 dimensions to that of the said building of the petitioner without any permission, but no action has been taken against such building owners. The petitioner is in fact ready and willing to get the condonable deviation regularized. It is also submitted that the petitioner has not been given any opportunity of hearing as mandated under law especially proviso to Section 436(1) of the Jharkhand Municipal Act, 2011 (in short "the Act, 2011"). Moreover, once the respondent no. 2 undertook before the learned Lokayukta that the part of the alleged irregular construction would be demolished, it was expected from the said respondent to act reasonably and fairly. The respondents failed to act in terms with Section 430 of the Act, 2011 which provides that if any building or structure of permanent nature has been constructed or commenced to construct after due approval of building construction plan, is found to have deviated from the said approved construction plan within permitted extent, the Municipal Commissioner or the Executive Officer shall not order for its demolition. The proviso to the said Section further speaks that the Municipal Commissioner or Executive Officer shall proceed to realize such fine or penalty as is prescribed under the provisions of the Act or Building Regulations, as the case may be. Chapter IX of the Jharkhand Building Bye-Laws, 2016 provides for compounding, penalties and compliance of the provisions of the Bye-Laws. The petitioner is entitled to have his case for compounding considered by the respondents, however the respondent no.2 took the most stringent action against him without providing any opportunity of hearing. The said building has not been constructed without any sanctioned map, rather the allegations against the petitioner is that some portion of the said building has been constructed contrary to the approved plan and hence this was a fit case where the provisions of Section 439 of the Act, 2011 ought to have been invoked. The petitioner is ready and willing to make alterations in the said building after the deviations are condoned and regularized. The said building has already been completed and third party right has been created and as such demolition of part of the structure will cause grave injustice and irreparable injury to him as no opportunity of hearing was granted 5 before passing the order dated 04.12.2020 by the learned Lokayukta. The respondents have not assessed the deviation made in the said building and without considering whether the deviation is condonable or not, issued the notices for demolition which is unreasonable and unwarranted.

6. Heard the learned counsel for the parties and perused the materials available on record. The petitioner has challenged the impugned notices whereby he has been directed to demolish 3rd and 4th floor of the said building alleged to have been made in contravention of the sanctioned map. Admittedly, the petitioner has made deviation from the sanctioned plan, however learned counsel for the petitioner has contended before this Court that the petitioner repeatedly requested the respondent no.2 to condone the deviation for which he was ready to pay fine/penalty as prescribed under the law, however the respondents did not take any action on the said request, rather straightway issued the order of demolition in purported compliance of the order dated 04.12.2020 passed by the learned Lokayukta.

7. To appreciate the contention of the learned counsel for the petitioner, I have gone through the record of the case. It appears that the petitioner was served with a notice vide letter no. 825 dated 24.03.2017 issued by the Executive Officer, Jhumari Tilaiya Nagar Parishad i.e., during the construction period itself, informing him that the construction activity was being carried out by him in contravention of the sanctioned map. The petitioner was directed to rectify the construction as per the sanctioned map and to inform the same to the Executive Officer. Though the petitioner claims that he visited the office of the respondent nos.1 and 2 and apprised them about the situation, however no such document has been brought on record in support of the said claim. Again on 20.12.2018, the Executive Officer, Jhumari Tilaiya Nagar Parishad served a notice to the petitioner informing about illegal construction of 3rd and 4th floor of the said building and directing him to get the said illegal construction of the building demolished within fifteen days from the date of the said letter failing which action was to be taken under the relevant provisions of 6 the Act, 2011. On 24.04.2019, the petitioner was again informed that the said building was inspected by an inspection team and the same was not found as per the sanctioned map and as such he was directed to file reply within a week as to why suitable action should not be taken under the relevant provisions of the Act, 2011 with respect to the unauthorized construction of the said building. Though the learned counsel for the petitioner has assiduously contended that the petitioner repeatedly requested for condonation of unauthorized part of the said building, yet no written reply appears to have been given by him with respect to the letters dated 24.03.2017, 20.12.2018 and 24.04.2019. In the meantime the learned Lokayukta, in a proceeding related to illegal construction of the said building, vide order dated 04.12.2020 directed the respondent no. 2 to take action in accordance with law and inform the same to him. Thereafter the respondent no., 2 vide letter no. 1750 dated 05.12.2020 and letter no. 30 dated 05.01.2021, directed the petitioner to demolish 3rd and 4th floor of the said building.

8. It would thus be evident from the aforesaid fact that since 2017 itself, the petitioner was repeatedly issued letters by the respondent authorities apprising him that he had constructed the said building in contravention of the sanctioned map giving him liberty to file reply to the same. Hence, the contention of the learned counsel for the petitioner that no opportunity of hearing was ever given to the petitioner by the respondents before taking such a drastic step, has no leg to stand. The petitioner has not brought on record any reply filed by him before the respondents either requesting for condoning the deviation or refuting the allegations. The available record further reveals that only after serving letter dated 05.12.2020 issued by the respondent no. 2, the petitioner vide letter dated 21.12.2020 requested the said authority for the very first time that he was ready and willing to pay the penalty that too not by making any appropriate application, rather the same was pleaded as one of the grounds of attack to the order of demolition contained in letter dated 05.12.2020. Thus, the conduct of the petitioner cannot be said to be bonafide at all. Had the petitioner preferred an appropriate application for 7 condonation of deviation at the time of service of the show cause notice dated 24.03.2017, the same would have been considered by the authority. However, the petitioner kept complete silence even after service of the show cause notices dated 20.12.2018, 24.04.2019 and 16.05.2019 issued to him and only after the order of demolition was passed, the petitioner made request for condonation of deviation that too in a casual manner as discussed hereinabove.

9. Hence, I do not find any infirmity in the impugned letters of the respondent no. 2 which have been issued after affording ample opportunity to the petitioner to set right the illegal construction made in the said building. The petitioner has invoked writ jurisdiction of this Court only after receiving the order of demolition of the illegally constructed floors of the said building by referring to the provisions of the Act, 2011 contending that the provision for condonation of deviation should be considered by the respondents. I am of the considered view that the petitioner had enough time and opportunity to represent before the concerned authority seeking condonation of deviation (if at all permissible), however he kept silence till issuance of impugned order of demolition and thus it is not a fit case to exercise extraordinary writ jurisdiction so as to interfere with the impugned letters. If on the given facts, the present writ petition is allowed, it would open a pandora's box encouraging all those who illegally construct their buildings in contravention of the bye-laws and keep silence till final order of demolition is passed. I am of the view that the said attitude needs to be discouraged.

10. The learned counsel for the petitioner puts reliance on Section 430 of the Act, 2011, which provides for regularization to the extent of permissible level of deviation by imposing fine or penalty. He further submits that Appendix-L of the Planning Standards & Building Bye- Laws provides the rules for condonation of deviation. In view of clauses 2.1 to 2.6 of the said Appendix, deviation from permissible standards of the said bye-laws may be condoned to the extent of 25% to 50% subject to various factors such as the nature of area (developed/undeveloped/developing) where the building is situated, area of land, height of the building etc. 8

11. If the petitioner had any such claim, he should have approached the competent authority for determination of the extent of deviation. However, the fact remains that due to omission on the part of the petitioner, the extent of deviation of his building could not be determined by the concerned authority. I am of the view that such contention of the petitioner cannot be accepted by this Court at this stage. The petitioner has also raised some disputed questions of fact claiming that there is a temporary construction on the fourth floor of the said building, however, the said plea cannot be taken note of under the writ jurisdiction of this Court particularly when the petitioner did not apprise the respondents of the said fact at appropriate time.

12. One of the arguments of the learned counsel for the petitioner is that he was not given any opportunity of hearing by the learned Lokayukta while passing the order dated 04.12.2020 and hence, any observation made by him would not be binding on the petitioner. Since the order of the learned Lokayukta has not been challenged by the petitioner in the present writ petition, any argument touching the merit of the order passed by the Lokayukta, cannot be taken into consideration by this Court.

13. In view of the aforesaid facts and circumstances, I do not find any ground to exercise extraordinary writ jurisdiction so as to interfere with the impugned orders as contained in letter no. 1750 dated 05.12.2020 and in letter no. 30 dated 05.01.2021, both issued by the respondent no.2.

14. The writ petition is, accordingly, dismissed.

15. Consequently, I.A. No. 149 of 2021 also stands dismissed.

(Rajesh Shankar, J.) Ritesh/A.F.R.